VPID Formula Skews Fines for Small Operators

By Ellen Smith

In a decision rejecting the way MSHA determines penalties, ALJ Michael Zielinski essentially threw out MSHA’s use of “violations per inspection day” for small operations, stating that the federal agency’s formula skews the violation history of small mines, and can lead to higher penalties.

 While the ALJ agreed with MSHA that there were violations at Hanson Aggregate’s Upton Quarry located in Hardin County, Ky., Zielinski said the mine’s overall history of violations “should be considered a neutral factor in the penalty assessment process.”

MSHA makes penalty determinations in part by taking the number of inspection hours in the previous 15-month period, dividing by five, and rounding up. Then, to determine a VPID rate, points used in the penalty calculation are assigned on the basis of the number of violations per inspection day. Zielinski pointed out that because the mine is small, the number of inspection days is low, but just one citation can increase points.

Zielinski said, “In this case, three section 104(a) citations caused the number of penalty points assigned for violation history to drastically increase from 0 to 25 points. Accordingly, I reject the implication that Hanson has a high violations history, and find that Hanson’s overall history of violations, as relevant to these violations, was moderate, and should be considered a neutral factor in the penalty assessment process.”

Although agreeing to lower the penalties, in part because the information “filed with the petition indicates that Hanson is a small operator,” Zielinski did uphold three violations including MSHA’s S&S finding where welds were broken on ladder steps accessing the operator’s station on a haul truck at the quarry.

MSHA cited the company for an S&S violation under §56.14100(c) where ladder steps on a 25A Volvo Haul Truck had broken contact anchor points in two places. The steps consisted of one floating, i.e., freely swinging, step on the bottom and three rigid steps above. The rigid steps were one unit, welded to a rectangular metal frame, which was bolted to the fender of the truck. The weld in the upper right comer of the framework where the top step was attached was fractured, and there was also a fractured weld where the second step from the top had been connected to a piece of angle iron that was attached to the truck’s lower frame.

In upholding the violation, Zielinski said it was Hanson’s responsibility to maintain the truck in a safe manner while it’s in use, and agreed that the ladder could have broken loose and could not safely hold the driver’s weight.

The S&S finding was upheld, with the judge agreeing with MSHA that there was a potential for a serious injury. Zielinski said he agreed there was a “repetitive exposure to the hazard.

“The haul truck was used on a daily basis; the operator would exit and enter the cab, walking up and down the steps, multiple times a day. If the driver fell while entering or exiting the cab, the injury would have
been serious and could have reasonably been expected to result in lost workdays or restricted duty from a broken or sprained ankle, torn ligament or back injury caused by falling off the steps. The ALJ also agreed that it was proper to take into consideration the weight of truck operator when assessing the type of injuries that could occur should the ladder fail.

Negligence was moderate, since the truck operator notices the sagging steps, but did not report it for maintenance, and the fractures were obvious when the truck was inspected. The ALJ noted that it was not known how long the condition existed, but it was likely the condition existed for multiple shifts and the company should have been aware of the violative condition.
MSHA’s proposed penalty of $1,304 was lowered to $600.

The ALJ also upheld a violation of §56.13011, but lowered MSHA’s penalty from $392 to $200 where there was a functioning pressure gauge on a portable air receiver tank in the back of a company pick-up truck. The lens was broken and the indicator needle was skewed. In upholding the violation, Zielinski said the standard clearly states that air tanks must be equipped with gauges that accurately measure the pressure within the tanks, and the missing lens could prevent an accurate pressure reading.

While the inspector listed the violation as having the potential to permanently disable someone if the tank was over-pressured and blew up, the judge said that the violation was unlikely to result in a permanently disabling injury. The violation was due to moderate negligence because the company should have known about and repaired the gauge lens.
A violation of the warning signs standard, §56.4101, was upheld, but MSHA’s proposed penalty of $392 was lowered to $125. The inspector found an oil drum in the back of a maintenance building, but no warning signs posted indicating a fire hazard, no smoking or no open flames. In addition, the inspector found dried leaves around the oil drum. While the front and sides of the building had signs, and there were signs inside, the judge agreed that there should have also been a sign in the back where the used oil was stored. Negligence was moderate given the open oil container and the leaves at the rear of the building.

Zielinski noted that all penalties were lowered based on the operator’s size and ability to continue in business, as well as Hanson’s demonstrated good faith in abating the violations.

Hanson Aggregates Midwest LLC, Docket No. KENT 2012-1310-M, July 16, 2013.

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, www.minesafety.com. She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at [email protected]

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